reporting the proceedings of judicial institutions

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1767 of 2021
(Arising out of SLP (C) No. 6731 of 2021)
The Chief Election Commissioner of India ....Appellant
 
Versus
M.R Vijayabhaskar & Ors. ....Respondents
3 This Special Leave Petition2
arises from an order dated 30 April 2021 of a
Division Bench of the High Court of Judicature at Madras. The High Court
entertained a writ petition3
under Article 226 of the Constitution to ensure that
COVID-related protocols are followed in the polling booths at the 135- Karur
Legislative Assembly Constituency in Tamil Nadu. During the hearings, the
Division Bench is alleged to have made certain remarks, attributing responsibility
to the EC for the present surge in the number of cases of COVID-19, due to their
 
1
EC
2
SLP
3 WP No. 10441 of 2021
PART A
4
failure to implement appropriate COVID-19 safety measures and protocol during
the elections. At issue are these oral remarks made by the High Court, which the
EC alleges are baseless, and tarnished the image of the EC, which is an
independent constitutional authority.
.........
5 A writ petition was filed before the Madras High Court by the respondent,
who is the District Secretary and was a candidate of the AIADMK for the 135-
Karur Legislative Assembly Constituency. Given the surge in the number of
COVID-19 cases, the respondent had sent a representation on 16 April 2021 to
the EC to take adequate precautions and measures to ensure the safety and
health of officers in the counting booths. Since no response was received, the
respondent approached the High Court and sought a direction to ensure fair
counting of votes on 2 May 2021 at the 135- Karur Legislative Assembly
Constituency by taking effective steps and arrangements in accordance with
COVID-19 protocols.
6 The petition was heard by a Division Bench of the High Court, comprising
of Justice Sanjib Banerjee, Chief Justice of the Madras High Court, and Justice
Senthilkumar Ramamoorthy, on 26 April 2021 and an order was passed in the
following terms:
4. [] Even though the polling was by and large peaceful in
this State on April 6, 2021, it must be observed that the
Election Commission could not ensure that political parties
adhered to the Covid protocol at the time of election
campaigns and rallies. Despite repeated orders of this Court,
going on like a broken record at the foot of almost every
order on an election petition, that Covid protocol ought to be
maintained during the campaign time, the significance of
adhering to such protocol may have been lost on the
Election Commission, going by the silence on the part of the
Election Commission as campaigning and rallies were
conducted without distancing norms being maintained and in
wanton disregard of the other requirements of the protocol.
5. In view of the rapid surge in the number of cases on a
daily basis, albeit this State not yet being as badly affected
as some other States, the measures to be adopted at the
time of the counting of votes on May 2, 2021, which is about
a week away, should already have been planned in the light
PART A
6
of the grim situation now prevailing. At no cost should the
counting result in being a catalyst for a further surge, politics
or no politics, and whether the counting takes place in a
staggered manner or is deferred. Public health is of
paramount importance and it is distressing that
Constitutional authorities have to be reminded in such
regard. It is only when the citizen survives that he enjoys the
other rights that this democratic republic guarantees unto
him. The situation is now one of survival and protection and,
everything else comes thereafter.
............
7 During the course of the hearing, it is alleged that the High Court orally
observed that the EC is the institution that is singularly responsible for the
PART A
7
second wave of COVID-19 and that the EC should be put up for murder
charges. These remarks, though not part of the order of the High Court, were
reported in the print, electronic and tele media.
8 On 27 April 2021, an individual filed a complaint, against Mr Sudip Jain,
Deputy Election Commissioner and other officials of the EC under Sections 269,
270 and 304 read with Section 120-B of the Indian Penal Code, 1860 in Khardah
Police Station, Kolkata. The complaint makes no reference to the order dated 26
April 2021 of the Madras High Court.
9 Before the Madras High Court, the EC filed a counter-affidavit detailing the
orders issued and the steps taken for management of poll processes in view of
the pandemic. The EC also filed a miscellaneous application9
for the following
reliefs:
[]
29. this Honble Court may be pleased to pass an order of
interim direction directing that only what forms part of the
record in the present proceedings W.P. No. 10441/2021
is to be reported by the press and electronic media and
further directions may be issued to the media houses to
issue necessary clarification in this regard and thus
render Justice.
30. In the circumstances, it is prayed that this Honble
Court may be pleased to pass on order of interim
direction directing that the police authorities shall not
register any FIR/complaint for offence of Murder on the
basis of the media reports of the oral observations
attributed to this Honble Court in relation to W.P. No.
10441/2021 and thus render Justice.
(emphasis supplied)
 
9 WMP No. 12062 & 12065 of 2020
PART B
8
10 The matter was heard again by the Madras High Court on 30 April 2021
when the High Court disposed of the petition, in view of the measures taken by
the EC for observance of COVID-19 protocols at the time of the counting of votes
on 2 May 2021, particularly in the 135- Karur Constituency. The miscellaneous
application was also closed in light of this order.
11 Aggrieved by the order of 30 April 2021, the EC has approached this Court.
The grievance is that its miscellaneous application has not been evaluated on
merits and its grievance in regard to the oral observations made during the
previous hearing have not been addressed.

26 Freedom of speech and expression extends to reporting the proceedings of
judicial institutions as well. Courts are entrusted to perform crucial functions under
the law. Their work has a direct impact, not only on the rights of citizens, but also
the extent to which the citizens can exact accountability from the executive whose
 
16 (1992) 3 SCC 637
PART C
18
duty it is to enforce the law. Citizens are entitled to ensure that courts remain true
to their remit to be a check on arbitrary exercises of power. The ability of citizens
to do so bears a direct correlation to the seamless availability of information about
what happens in a court during the course of proceedings. Therein lies the
importance of freedom of the media to comment on and write about proceedings.
This principle was recognized in the Madrid Principles on the Relationship
between the Media and Judicial Independence17. The first principle is formulated
thus:
1. Freedom of expression (including freedom of the media)
constitutes one of the essential foundations of every society
which claims to be democratic. It is the function and right of
the media to gather and convey information to the public and
to comment on the administration of justice, including cases
before, during and after trial, without violating the
presumption of innocence.
This principle is recognized within Indian jurisprudence, where the media has full
freedom to report on ongoing litigation before the Courts, within certain limitations,
bearing on the need to ensure that justice between parties is not derailed.
27 The media has over the years, transitioned from the predominance of
newspapers in the printed form, to radio broadcasts, television channels and now,
to the internet for disseminating news, views and ideas to wide audiences
extending beyond national boundaries. The internet, including social media, have
refashioned and, in significant ways, revolutionized the means through which
information is relayed. At every stage of this transition, new questions have been
 
17 These principles were issued by a group of 40 distinguished legal experts and media
representatives, who met in a meeting convened by the International Commission of Jurists Centre
for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, available at
<https://www.icj.org/wp-content/uploads/1994/01/madrid-principles-on-media-and-judicialindependence-publication-1994-eng.pdf>
PART C
19
raised about how court processes will adapt to the change, so that the rights of
the parties before the courts and processes of justice are not affected18. However,
while these are valid concerns, they should never be a good enough reason for
Courts to not engage with evolving technology. Technology has shaped social,
economic and political structures beyond description. The world is adapting to
technology at a pace which is often difficult to catalogue, and many of our citizens
are becoming digital natives from a young age. It is understandable that they will
look towards modern forms of media, such as social media websites and
applications, while consuming the news. This, understandably, would also include
information reported about the functioning of courts. Hence, it would do us no
good to prevent the new forms of media from reporting on our work. It was
keeping this principle in mind that the Lord Chief Justice of England and Wales, in
the context of the use of live text-based forms of communication (including
Twitter) to report on court proceedings, noted thus19:
It is presumed that a representative of the media or a legal
commentator using live, text-based communications from
court does not pose a danger of interference to the proper
administration of justice in the individual case. This is
because the most obvious purpose of permitting the use
of live, text-based communications would be to enable
the media to produce fair and accurate reports of the
proceedings. As such, a representative of the media or a
legal commentator who wishes to use live, text-based
communications from court may do so without making an
application to the court.
(emphasis supplied)
 
18 Daniel Stepniak, Technology and Public Access to Audio-Visual Coverage and Recordings of
Court Proceedings: Implications for Common Law Jurisdictions 12 William & Mary Bill of Rights
Journal 791 (2004)
19 Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from
Court for the Purposes of Fair and Accurate Reporting available at <https://www.judiciary.uk/wpcontent/uploads/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf >
PART C
20
28 Our Court has performed its modest part to acknowledge the rapid pace of
the development of technology, and our need to keep up. In Swapnil Tripathi
(supra), it noted:
C. Technology and Open Court
84. In the present age of technology, it is no longer sufficient
to rely solely on the media to deliver information about the
hearings of cases and their outcomes. Technology has
become an inevitable facet of all aspects of life. Internet
penetration and increase in the use of smart phones has
revolutionized how we communicate. As on 31-3-2018, India
had a total of 1,206.22 million telecom subscribers and
493.96 million internet users. [Telecom Regulatory Authority
of India, the Indian Telecom Services Performance
Indicators January-March, 2018. Available at:
<https://trai.gov.in/sites/default/files/PIReport27062018_0.pd
f>.] Technology can enhance public access, ensure
transparency and pave the way for active citizen involvement
in the functioning of State institutions. Courts must also take
the aid of technology to enhance the principle of open courts
by moving beyond physical accessibility to virtual
accessibility.
Acceptance of a new reality is the surest way of adapting to it. Our public
constitutional institutions must find better responses than to complai